The main reason her Honour so held was that the Act specifically empowered the Board at the end of an inquiry to make a finding that the builder had failed to comply with the Act: s. 179(1)(b). If it did so, it could reprimand the builder, order costs against him, fine him, require him to promise not to do things, and suspend or cancel his registration: s. 179(2).

Her Honour observed:

’29 If the builder’s argument (that the Inquiry is a proceeding for an offence) is accepted, then the Board is not even authorised to conduct a disciplinary inquiry into whether he has failed to comply with s 16(1). But, s 179(1)(b) specifically empowers the Board to make a finding that a builder has failed to comply with the Act. There would be little, if any, work for s 179(1)(b) to perform, were the builder’s argument correct. The court should, if possible, construe s 179(1)(b) so as to give it some meaning consistent with the purpose and objects of the Act.’

That conclusion would obviously be stronger if breach of every, or even most of the obligations on builders under the Act amounted to offences than if there are many obligations placed by the Act on builders breach of only some of which is a crime.  In the latter scenario, the work of sub-section (1)(b) if parliament were presumed not to have intended bureaucrats to run cases for declarations of the commission of crimes in tribunals ignorant of the criminal law where the laws of evidence do not apply would be to allow determinations to be made of breach of those obligations under the Act which do not sound in criminal liability.  I am not sure what the situation in that regard is under the Building Act, 1993.

Her Honour said:

’37 It is trite to observe that the same events may have a variety of legal consequences. For example, an act or omission may constitute a criminal offence and also give rise to civil proceedings, such as an action in damages. The same events may also have disciplinary consequences.

38 The standard of proof will vary, depending on the type of proceeding. Disciplinary inquiries into professional misconduct are not criminal proceedings, and the standard of proof is not proof beyond reasonable doubt. Nevertheless, given the nature of such proceedings and the serious consequences which they may have, the Briginshaw test applies.

39 The structure of the Act is that any failure by a builder to comply with a provision such as s 16(1) may have criminal consequences (through prosecution for an offence, brought in court by a prescribed person other than the Board) and/or disciplinary consequences (through the holding of an inquiry by the Board). A different standard of proof would apply, depending on the nature of the proceeding. Furthermore, a proceeding for an offence would be subject to the limitation period in s 241(7), a disciplinary inquiry under s 178 would be subject to no such time limit.

40 Different persons make the decision whether or not to bring the different types of proceeding. Whether one or both proceedings would be commenced would no doubt depend on the circumstances of each case.’

As Her Honour pointed out, recourse to the outcomes of other cases was of limited assistance. The question for determination was really one of statutory construction, and, as usual, the best way of construing a statute was a careful study of its stated purposes, and of the interrelationship of its provisions.  For that reason, I hesitate in making this last comment, because I have not been disciplined enough to compare the statutory regime at issue in Legal Practitioners Conduct Board v Ardalich [2005] SASC 278, which I noted here with the one under consideration by Justice Hollingworth.  But the tenor of this passage, which does not appear to have been cited to her Honour (perhaps because it was not relevant, of course) does strike up a diferent tone from that in this more recent decision:

’37. In my view, it was not appropriate for the Tribunal to embark upon some sort of quasi criminal trial, but adopting a lower standard of proof, ….

38 If the Board charges the practitioner with unprofessional conduct constituted by the commission of a criminal offence, short of an admission by the practitioner, it is incumbent upon the Board to produce evidence of the conviction of the practitioner of the offence recorded in a court exercising criminal jurisdiction.’

If I were making the law, this is how I would set it up:

• where conduct, established on the civil burden of proof, would meet some test for conduct warranting discipline independently of the fact that, the same conduct accompanied by a sane and guilty mind, then that conduct ought to be able to be relied on as conduct warranting professional discipline, but the allegation should be the engaging in of the conduct without alleging that the conduct amounted to the commission of an offence, or breached a provision the sole purpose of which was to create an offence;
• but where the only reason the professional’s peers would regard the conduct as wrongful is by virtue of the fact that its deliberate engaging in amounted to an offence (and the conduct did not also fall within some definition of conduct warranting discipline independently of the fact that it amounted to an offence, so that it would be alleged without reference to the offence) then a disciplinary body should not be empowered effectively to run a criminal prosecution on the civil standard;
• no one but a criminal court should be taken to have been invested by parliament with the authority to make a finding in a case which has punitive consequences such as fines or cancellation of a professional registration (regardless of whether or not imprisonment is an option) that a professional has committed a crime (or, which is the same thing, breached a provision of an Act which creates an offence) unless parliament has shown, by clear words, that it intended such a consequence.

That is especially so where those who are subject to investigations of allegations of conduct warranting discipline often have their privilege against self-incrimination revoked, the hearings occur in tribunals which are not bound by the law of evidence, and the outcomes of the hearings — heavy fines, loss of the right to practise a profession, and (unlike defendants in criminal prosecutions) an obligation to pay the ‘prosecutor’s’ costs — may be far more serious in many ways than the typical outcome of successful prosecutions of even serious crimes (a suspended sentence of imprisonment).

Update, 15 July 2008: Apparently the Law Institute’s trust account inspector Ron Hall thumped the table while under cross-examination by the lawyer’s counsel. What drama! The Age‘s report is here. Mr Hall’s evidence provides a fascinating insight into the way trust account inspectors employed by the Law Institute think. Mr Hall said at one stage, he thought ‘right, I have enough here to put a practitioner up for alleged misconduct or unsatisfactory conduct’. Inspectors hold statutory office as individuals, and their job is to investigate compliance with the trust account regime, and to report their results to the Legal Services Board. The Legal Services Commissioner is charged with bringing prosecutions for misconduct or unsatisfactory conduct. Many trust account inspectors are employees of the Law Institute, and the Board delegates its functions in relation to trust accounts to the Institute. The Commissioner outsources the investigation of allegations of unsatisfactory conduct and misconduct to the Institute too. This is under the new simpler, more transparent, new and improved no-self-regulation-here! regime set up at such expense of paper and ink by the Legal Profession Act, 2004. According to The Age:

‘Mr Hall was asked if, during his investigation, he acted “at the express behest of the Australian Crime Commission”. He first said “yes”, adding he had been subpoenaed by the ACC. Asked again by VCAT deputy president Mark Dwyer, Mr Hall said the LIV investigation was his own work. But then he revealed that ACC officers gave him one of their documents.’

Update, 12 July 2008: The lawyer failed in his bid to have the Supreme Court prevent the Legal Profession Tribunal continuing to hear the disciplinary charges against him. And The Age reports on one of the transactions under scrutiny, a loan by Michael Gudinski to his then lawyer, of $20,000, said by the Legal Services Commissioner to be inadequately documented, and a breach of professional standards.Original post: The lawyer towards the centre of the regulators’ tax probe Project Wickenby, once Kylie Minogue’s and other celebrities’ lawyer, is again in the news as his VCAT Legal Practice List prosecution continues in his absence overseas. He has appealed Deputy President Dwyer’s refusal to adjourn the disciplinary hearing on the basis it would prejudice the hearing of what the solicitor claims are imminent criminal charges and the appeal will be heard in the Supreme Court on Friday morning. His barrister says he has no instructions in relation to the disciplinary matters. The Commissioner alleges the solicitor provided no cooperation with the investigation. I am not aware of Deputy President Dwyer sitting in the Legal Practice List before. He was the head of Freehills’s Environment and Planning Group and was appointed DP on 1 April 2007.

As far as I can see from Austlii, all of his decisions written reasons for which have been published on Austlii have involved local councils and I infer that they have all been planning matters. There is one exception: a real property list matter. A web profile of Mr Dwyer before his appointment says:

‘Mark was admitted to Practice in Victoria in 1982, and later in NSW (1996) and WA (2000). He has been accredited as a Specialist in Environment and Planning Law since commencement of the Specialisation Scheme in 1990 and was a member of the Specialisation Advisory Committee for Environment and Planning Law from 1996 to 2006.

Mark joined Freehills as a partner in 1995, and has headed the firm’s national Environment & Planning Law Group from 1998-2006.

Mark advises on the legal and regulatory framework relating to the development and use of land. This includes planning, environmental, land acquisition and valuation, heritage and native title issues.

Mark primarily assists clients with the planning approval process and environmental impact assessment associated with large-scale property and infrastructure developments and corporate transactions.

Mark has advised the Department of Sustainability and Environment (and its predecessors) on planning systems reform since 1987, including implementation of the Planning and Environment Act 1987, ‘new format’ planning schemes and ‘plain English’ definitions, subdivision and heritage legislation, and the Victoria Planning Provisions.

Mark’s other professional roles have included:

• Chairman, Law Council of Australia’s national planning and environmental law committee (1999-2003) – this included presentation of the LCA submission on the Environment Protection and Biodiversity Conservation Act to a Senate Inquiry;
• Lecturer in Water, Environment, and Local Government Law within environmental engineering courses at Deakin University and Victoria University of Technology (1992-94);
• Board member, Environment Defenders Office (1991-93);
• Trustee – Kerrup-Jmara Aboriginal Elders Trust (1989-92);
• Deputy Chair and Executive Member of LIV Environmental Law Section, and various ad hoc LIV committees (1994-2000);
• Executive Member of VPELA, and various ad hoc VPELA committees.’

Update, 17 June 2008: The Age has caught up with this story. It’s a funny old article. Weirdest is this comment ‘A prominent senior counsel said the system was unfair, and any complaint should be forwarded immediately to the subject of the complaint.’ In my experience, the Commissioner does almost invariably send the complaint immediately to the solicitor, and that’s not what the case was about anyway.

Original post: In Byrne v Marles [2008] VSCA 78, the Court of Appeal has thrown a very lean cat amongst some very fat pigeons in a decision which may invalidate all current investigations of the Legal Services Commissioner unless it is overturned on appeal or remedial legislation is passed with retrospective effect (which was the response after the great delegation debacle). The Court found that the Commissioner’s referral to the Law Institute for investigation of what she characterised as a disciplinary complaint was ‘invalid’. In following her absolutely standard practice, the Court said the Commissioner had failed to give natural justice to the solicitor by deciding to characterise the complaint as a disciplinary rather than civil complaint and by deciding not to dismiss it summarily without investigation, without allowing the solicitor to be heard in relation to those preliminary decisions. Anyone — complainant or lawyer — who has a current complaint which is not heading in the desired direction should seek advice from a lawyer with expertise in relation to the professional discipline of lawyers. It is conceivable that the decision may provide options for those against whom professional discipline prosecutions have succeeded under the Legal Profession Act, 2004. Given that the Commissioner never, in my experience, invites discussion about the preliminary questions of whether to dismiss the complaint before commencing an investigation, or on the proper characterisation of the complaint, it seems likely that most of the Commissioner’s decisions to investigate complaints will be ‘invalid’.

As I have sometimes said, Justice Gillard was one of my favourite judges, and Byrne v Law Institute of Victoria is one of my favourite bits of his Honour’s legal writing: see ‘Justice Gillard gives the Law Institute a Bloody Belting‘. Mr Byrne has been slaying regulators again, this time prevailing over the Bureau de Spank in the Court of Appeal in Byrne v Marles [2008] VSCA 78 after failing at first instance before Justice Kaye (see Byrne v Marles [2007] VSC 63). In the case Justice Gillard heard, Mr Byrne sought judicial review of the Law Institute’s finding that a complaint against him had been made out (even though the Institute decided to take no further action). He succeeded, Justice Gillard holding that the Law Institute’s decision was so unreasonable that no decision maker could reasonably have arrived at it.

The facts were that a man briefly retained Mr Byrne, whom I will refer to as ‘the solicitor’. Then he terminated the retainer in favour of another firm. The new firm asked for the solicitor’s file. He declined, saying that he was drawing a bill of costs and maintained a lien over the file in respect of the as yet unbilled fees. No one suggested there was anything wrong with the assertion of the lien. The new firm asked for a copy of the costs agreement. When the solicitor did not produce it, the new firm threatened to complain to the Law Institute (a misconceived threat, since the Law Institute no longer has any role in receiving complaints against lawyers). That got the solicitor’s goat. He obviously considered the threat to be an improper bullying tactic, and demanded to know what exactly he would be doing wrong by not acceding to a request by a client for a copy of the solicitor’s part of the contract between them in circumstances where the client seemed to have lost his part. The solicitor’s correspondence was relatively temperate, but one of his missives said

‘Please don’t misunderstand us, there is nothing wrong with your threat, it is just your inability to follow up which bother us [sic], because hollow threats come at a price. We neglected other work we had to reply to you in the apparently idle time-frame you set, but it appears we’ve only given in to a bully; you had no complaint to make and the deadline you set amounted to nothing.’

The decision does not suggest that the solicitor was under any duty to provide a copy of the costs agreement on demand, but Nettle J said at [61] that

‘the [solicitor's] alleged conduct in repeatedly ignoring [the new firm’s] apparently reasonable requests for a copy of the fee agreement, coupled with the [solicitor's] references to idle threats and bullying, were rude and in context sufficiently discourteous, offensive and provocative as to be capable of contravening Rule 21′

in the sense that the Commissioner’s characterisation of the allegations as amounting to a breach of that rule could not be said to be so unreasonable that no reasonable decision maker could have arrived at that characterisation. So, his Honour said, it could not be said that the characterisation of the complaint as a disciplinary complaint was completly and utterly obviously wrong, since breach of a conduct rule is capable of amounting to professional misconduct or unsatisfactory professional conduct. Rule 21 said at the relevant time:

‘A practitioner, in all of the practitioner’s dealings with other practitioners, must take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that the practitioner’s communications are courteous and that the practitioner avoids offensive or provocative language or conduct.’

The new firm’s complaint had said the solicitor’s conduct ‘has been unprofessional and obstructive, especially considering his knowledge of the client’s poor grasp of English. There has been one verbal request and four written requests for the fee agreement, all of which have failed to produce the document, or a reasonable response’.

The Commissioner simply provided to the solicitor a copy of the complaint, advised that she had characterised it as a disciplinary complaint (as opposed to a civil complaint), and that she was referring it to the Law Institute for investigation. The Institute was then to report back to her to enable her to make a decision. The characterisation of the complaint as a disciplinary complaint meant that the Commissioner could exercise the extraordinary powers of compulsion at her disposal in disciplinary complaint investigations (but which are not available in settlement attempts of civil disputes). It meant that the end result might be a disciplinary prosecution by her rather than a civil action by the client. It meant that if the complaint were made out, the options for the disposition of any further disciplinary complaint made within the next 5 years would be less beneficial for the solicitor. Nettle JA said at [71]:

‘No doubt a decision by the Commissioner to treat a complaint as a disciplinary complaint and to investigate it as such or to refer it for investigation by the Institute enlivens the investigative powers of the Commissioner and the Institute, including powers to compel the production of documents and explanations. In that limited sense it may be said that such a decision is one which satisfies a condition precedent to the exercise of power which may in turn affect rights or otherwise give rise to legal consequences. But that is not sufficient to attract certiorari. It does not necessarily follow from the Commissioner’s decision to investigate or refer that compulsive powers will be invoked. It is conceivable that an examination [sic.] could be carried out without any reference to the subject of the complaint or alternatively by means of interview without any compulsion.’

But that did not leave the solicitor without a remedy. The solicitor had a right to be heard on the characterisation of the complaint, and as to whether the Commissioner should summarily dismiss the purported complaint before investigating it. Nettle JA said:

‘[85] … because the Commissioner is compelled by s 4.2.8 of the [Legal Profession Act, 2004] to give notice of the complaint to the solicitor as soon as practicable after receipt, and to make a preliminary decision whether to dismiss the complaint summarily before going further with the investigation, it appears to me that the statute evinces an intention that the Commissioner should give notice of a complaint to the solicitor more or less immediately after receipt, and then take into account anything about the complaint which the solicitor may wish to submit, before determining whether to dismiss the complaint summarily or to go on to investigate it further or to refer it to the Institute for investigation. Otherwise, why provide, as s 4.2.8 so clearly does provide, that the Commissioner must notify the solicitor of the complaint as soon as practicable after receipt?’

[86] … the Commissioner has an independent obligation under s 4.2.10 to determine whether a complaint is to be dismissed summarily or not proceeded with further. If so, there is practical merit in providing the solicitor with an opportunity to make a submission or adduce facts to the Commissioner before the Commissioner determines that the complaint is a disciplinary complaint which needs be investigated. The right to be heard at that stage affords the solicitor an opportunity to head off the complaint in limine, by persuading the Commissioner not to treat it as a disciplinary complaint or to dismiss it or not proceed with it under s 4.2.10. And such a right to be heard is essentially different to any which the solicitor may later be accorded by the Institute or the Board.

[87] In the result, it appears to me as a matter of statutory construction that the structure and operation Part 4.2 imply an expectation that the Commissioner will give the solicitor a right to be heard at the outset before making the preliminary decision for which s 4.2.10 provides.

…

[89] … The content of natural justice is variable according to the circumstances of the case and, in the ordinary case, it should not require much more than the Commissioner inviting the solicitor to respond to the complaint and specifying a relatively short period of time (perhaps no more than a week after giving notice) in which any such response should be provided. In other kinds of cases, for example in cases of real urgency, or where the giving of notice would likely lead to the destruction of evidence or something of that nature, the content of natural justice might be reduced; in some cases perhaps even to the point of effectively abrogating it altogether. All in all, there should be few cases in which there is much of a problem.’

‘[58] … It would bring the administration of justice into disrepute to permit the Bar to prosecute a charge of misconduct while at the same time saying the opposite, namely, that it was not advancing a case of misconduct or seeking a finding of misconduct. It is an entirely different position to that which might have arisen had the charge been proceeded with and, after all the evidence was in, the Bar conceded that the evidence supported only a lesser charge [i.e. unsatisfactory conduct]. The use of a misconduct charge simply to obtain a finding of a lesser charge when the case for misconduct is completely disavowed before the hearing commences is, I think, a misuse of the statutory procedure and, indeed, as the plaintiff submitted, contrary to the spirit of the Act, given the requirement that the Bar be satisfied when bringing the charge that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of misconduct. If the Bar has reached the view, as it has, that a case of misconduct cannot be made out and it does not seek to do so, such a charge ought not as a matter of justice and fairness be heard.’

At a directions hearing just before Christmas 2005, 4 months after the laying of the charges, VCAT-pretending-to-be-the-Full-Legal-Profession-Tribunal suggested that the charges be heard in two roughly equal tranches. The parties acquiesced in that procedure, and the Bar made it clear that there was no abandonment of the second tranche.

The first tranche took 20 hearing days in April and May 2006. The opening went at least 6 days. The barrister was cross-examined for 2 days. Ten of the charges were not made out. The other 4 charges were not made out either, but VCAT exercised the power under s. 161 of the Legal Practice Act, 1996 (“A legal practitioner … charged only with
misconduct may be found guilty instead of unsatisfactory conduct.”) In other words, a breach of the rule specified in 4 of the misconduct charges was made out, but the thing which distinguishes unsatisfactory conduct and misconduct in breaching a conduct rule — the intention to breach the rule, or at least the recklessness as to whether conduct would breach the rule — was not made out. The decision given on 14 July 2006 was 186 pages, and 55,500 words long: Victorian Bar Inc v M [2006] VCAT 1417. It came down a year after the laying of the charges.

Section 157 of the Legal Practice Act, 1996 required the Tribunal to hear all charges laid with it. Following the hearing and decision in the first tranche of charges, the Bar indicated that it would lead no evidence at the hearing of all but one of the remaining charges — effectively abandoning them — and indicated that it would seek to amend charge no. 21 so as to allege unsatisfactory conduct rather than misconduct. VCAT refused the amendment application, saying it had no power to amend charges. The Bar then indicated that it would proceed with the misconduct charge notwithstanding its indication to VCAT that it did not expect to be able to make the charge out, but would invite VCAT to exercise the s. 161 power in the same way as it had done in relation to the 4 of the charges originally heard which were not entirely unsuccessful.

On 26 October 2006 the plaintiff sought an order by way of judicial review under Order 56 of the Supreme Court Rules, permanently staying the further prosecution or hearing of charge 21 on the ground of abuse of process and, further or alternatively, orders in the nature of prohibition prohibiting the Bar from further prosecuting charge 21 and prohibiting the Tribunal from proceeding to hear and determine charge 21. As recounted above, the application succeeded.

Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493 (Gillard J)

Justice Gillard said doctors get no res judicata and allowed the doctors’ regulator to fix a bungled prosecution following a complaint by deciding to investigate the matter already decided under its power to investigate of its own volition.
The Medical Practitioners Board is the statutory authority for the discipline of doctors. Dr Kabourakis prescribed drugs to the victim of an industrial accident. Then the victim died. His wife complained. The Board appointed a doctor to investigate as its delegate. He recommended an informal hearing be held. At the hearing, due to an oversight prior to the hearing, an expert report in relation to the doctor’s conduct was not considered and not given to the doctor. The Board determined that the doctor was not guilty of unsatisfactory conduct. The complainant involved the Ombudsman. The oversight became apparent. The Board purported to exercise its power to convene a second hearing of its own volition. That is, it purported to exercise a different power from the one associated with complaints which it had exercised the first time.

The doctor, represented by niche medical negligence firm JW Ball & Sons, failed in his application for review from the Supreme Court under Order 56 of the Supreme Court Rules (that is, old fashioned judicial review in administrative law, not under the Administrative Law Act, and not merits review of the kind engaged in by VCAT under the VCAT Act). He had sought an order quashing the Board’s decision to convene a second hearing.

Justice Gillard, who had heard another Order 56 application in SPB v Law Institute of Victoria Ltd a week earlier said of the alternative power to convene a hearing employed by the Board on the second occasion:

“[32] Section 25(7) clearly gives the Board power to determine of its own motion whether or not to, inter alia, hold an informal hearing into the professional conduct of a practitioner. This power is exercisable whether or not there has been a preliminary investigation. It is a power that is separate and distinct from the obligation resting on the Board in respect of a notification to the Board of a belief by a person that a medical practitioner has engaged in unprofessional conduct, or that the practitioner’s performance is unsatisfactory, leading to a preliminary investigation, recommendation and determination by the Board to accept a recommendation and hold a hearing. This sub-section gives an additional power to be exercised by the Board of its own motion, irrespective of whether there has been a preliminary investigation. Standing alone, it clearly empowers the Board to determine to hold an informal hearing. This can be exercised even after a preliminary investigation. The outcome of the latter resulting in a recommendation obliges the Board to determine whether or not to act on the recommendation. In my opinion, it is clear that having made the determination, the Board may of its own motion determine to conduct a hearing even if contrary to the recommendation. In my opinion, there is nothing in the Act that excludes this power from operation because an informal hearing has taken place and a finding has been made which in the circumstances was accepted by the Board. The power in s 25(7) is a stand alone power which the Board may exercise of its own motion.”

His Honour concluded:

“whilst it may be arguable that the panel which undertook the first informal hearing and made a finding is at the end of its statutory power, the presence of [the power under which the Board had purported to convene the second hearing] makes it clear in my opinion that the Board has a separate and distinct power which it may exercise of its own motion. That is what it has done by establishing a second panel to undertake a second informal hearing. In addition, there is nothing in the Act which precludes the Board from correcting a mistake by holding a second informal hearing in accordance with the principles stated in Bhardwaj’s case. That is, the decision is an administrative one, consistent with the Board’s duty to properly investigate a notification in the interests of good administration and fairness, and the functus officio rule must give way. It follows that the Board has the power in accordance with the principles stated by the High Court [in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 including at 603].

His Honour found that the “overlooked” s. 40 of the Interpretation of Legislation Act, 1984 (Vic) also applied. That says that where a statutory power is granted it may be exercised from time to time as the occasion arises, unless a contrary intention appears in the statute under interpretation. His Honour found that there was no such contrary intention, even evidenced as by the scheme of the Act as a whole. He found that the Board having considered that the occasion arose, and given that a fresh occasion had arisen by virtue of the omission of the probative report on the occasion of the first exercise of the power, s. 40 did provide a power to hold a second hearing. It was no part of his function in a judicial review proceeding to decide whether the Board was right that the occasion had arisen; that was a matter for the Board.

In relation to the principle of res judicata (the rule against relitigation between parties to a judgment of the dispute decided by the judgment), Gillard J decided that the common law principle had been displaced by the Medical Practice Act, 1994 which he had found permitted the holding of a second hearing in the circumstances of this case.

But he said the principle had no application anyway:

“[87] A statutory tribunal may be a tribunal to which the doctrine extends, but it depends upon whether or not in the exercise of its decision making process it finally decides a question arising between the parties. There is no doubt that the doctrine does not apply where a tribunal is making a mere administrative decision. The decision must be one made in respect to an issue between parties, after considering the evidence and argument.

[88] In my opinion, what the panel did, resulting in a finding made by it at the first informal hearing, does not amount to a final judgment between parties litigating an issue or cause. The fact was that the informal hearing did not involve and was not made in the course of any lis inter partes. There was no issue between the notifier and the doctor. The notifier notified the Board that she believed Dr Kabourakis may have engaged in unsatisfactory professional performance when treating her son that was unsatisfactory. By reason of s 25, the Board was bound to investigate the notification. It is not a question of parties litigating a cause. It is not a question of a lis. The informal hearing was not a judicial determination of an issue. The informal hearing did not decide any rights between parties. The findings of the panel were reviewable if an adverse finding was made by the medical practitioner. The members of the panel may not include a legal practitioner although there would be power to appoint a legal practitioner to the panel. The hearings are closed to the public and legal representation is not permitted. Further, the proceeding must be conducted with as little formality and technicality as possible, and the panel is not bound by the rules of evidence. There is no suggestion that evidence should be given on oath. All of these factors lead to the conclusion that the informal hearing panel did not make a final judgment between parties who were litigating an issue, which resulted in the establishment of a right.”

Tony Cavanough QC with Stephen Moloney for the doctor, and Mr Richard Tracey QC with Stephen Donaghue for the Board.